The Definition of Terrorism under Section 1 of the Terrorism Act, 2000 - Essay Example

A Critical Analysis of the Definition of Terrorism under Section of the Terrorism Act, 2000 Introduction Terrorism Act 2000 which came into force from 19th February 2001 was subjected to wider debate even from the date of its introduction sometime earlier. Traditionally the control, monitoring and tracking down of terrorism in the UK was subjected to almost all the legislations. This situation was changed to one that depends exclusively on the definition of the term 'terrorism' as laid out in the Terrorism Act, 2000. The Terrorism Act changed the scope of the definition of the term; then derived the procedures for controlling the terrorism and finally evolved the policy. All the criticisms have been centered round the very basic issue of definition of the term 'terrorism'. This paper details some of the contradicting views on the definition of terrorism. Definition of the Term 'Terrorism' The definition of terrorism has been exhaustively dealt with by section 1 of the Terrorism Act 20001. Under Section 1 of the Terrorism Act, 2000 the term 'terrorism' is defined to include "any specified action, the use or threat of which is designed to influence any government or to intimidate the public in order to advance a political religious or ideological purpose" (James Hammerton)2. The specified actions may among other things include actions which: involve serious violence against a person cause serious damage to property endangers the life of a person other than the person committing the act create a serious risk to the health or safety of the public or are designed to interfere with or seriously disrupt an electronic system (James Hammerton) The use or threat of action which involves the use of firearms or explosives will be deemed to be terrorism whether it is designed to influence the government or not or to intimidate a section of the public. The definition as provided for in section 1 of the Terrorism Act, 2000 thus includes an action that satisfies result under subsection (2), intention under subsection (1) (b) and motivation under subsection (1) (c). However it has been specifically provided that where the action involves there is no relevance of the intention3. Criticisms on the Definition of Terrorism The major criticism against this exhaustive definition brought into force by the Terrorism Act 2000 is that it has the effect of making a serious assault on the civil liberties. This criticism is leveled on the ground that the definition covers even those who voice support for armed resistance against suppressive regimes and even those who organize mass faxing to register their protest against the government. The report from University of Essex describes the definition as too wide devoid of the clarity required for the criminal law.4 The same report points out that Amnesty International and the Parliamentary Joint Committee also have a similar view on the definition of the term 'terrorism'.5 It has been pointed out that the Terrorism Act, 2000 does not cite any specific offence of committing an act of terrorism, as has not been the case with the legislation in many other jurisdictions. Here in the case of Terrorism Act the tacit legal assumption is that the existing offences under any other criminal law would cover the terrorist attack under Terrorism Act. However this may give rise to a situation that the acts or conducts which are ancillary to the terrorist acts would be "criminalized in many situations in which analogous conduct ancillary to other criminal activity would not be". The following cases will clearly illustrate this point It is considered as an offence under section 56 of the Terrorism Act, 2000 to direct a terrorist organisation at any level. This act at a very low level may not be subjected to the wider scope of terrorist attack "It is an offence under section 38B of the 2000 Act, as inserted by the Anti-Terrorism, Crime and Security Act 2001, for any person to fail to disclose as soon as reasonably practicable any information which he knows or believes might be of material assistance in preventing an act of terrorism or securing the apprehension or conviction of a person involved in such an act"6. Where a person possesses an article linked to terrorism it would amount to an offence under section 57 (1) of the 2000 Act. In this case the action involves a reverse burden of proof. In this case it is for the person to prove that the article was not in his possession for any terrorist purposes, in circumstances where his action gives rise to reasonable suspicion that the article was kept for any terrorist purposes. Section 1 of the Terrorism Act, 2006 creates an offence of encouragement of terrorism. In case if the definition of terrorism has not been drafted to precisely reflect the common understanding of the expression 'terrorism' it is highly likely that the above-said offences will be frequently committed under situations where there was never any intention to incur any criminal liability. Inclusion of Religious Cause in the Definition It has been argued that the offences against property should not be included in the definition of terrorism. Similarly offences associated with religious purposes should be excluded from the definition, as religion is a diffuse concept that cannot be defined precisely. However this argument is countered by pointing out that just as a political cause cannot be excluded form the definition the religious cause cannot also be excluded, as the religious cause would either be political or ideological and in both cases it would inflict danger to the person or property of other person. This view is supported by the Review of Security and Counter Terrorism Legislation by the Parliamentary Joint Committee on Intelligence and Security of the Australian Parliament7 The inclusion of religious cause in the definition of terrorism is found favour with Terrorism Suppression Act 2002 of New Zealand,8 and the Protection of Constitutional Democracy Against Terrorism and Related Activities Act 2003 of South Africa, and some international treaties to which the UK is a signatory9 Motive or Design The motive or design is found in Section 1(1) (b) of the Terrorism Act, 2000. The argument in this case is the reference to the 'section of the public' is 'too broad' as it may also involve a small group of people. The Council of Europe Convention on Terrorism has not favoured the use of the phrase 'or a section of the public'. However the removal of this phrase might ultimately exclude the actions directed against a small religious group or other minority members of the community. On a similar note there have been contentions that the word 'influence' is rather too low in force and is also not consistent with the definitions of international comparisons. It is pointed out that under certain circumstances the following acts might be considered to be covered by the definition of the term terrorism under the Act: 1. A strike by fire-fighters - amounting to endangering life; done with an intention to influence the government; for a political cause 2. Any economic sanction imposed by one country on another causing increased poverty in the other state - serious risk of health to a section of the public; to influence a government; for a political cause 3. The action of the missionaries in Africa in providing HIV aids on the condition of conversion to Catholicism and thereby indirectly encouraging the spread of HIV - serious risk to health or endangering life; to intimidate public; for a religious cause 4. Poll tax riots undertaken by public - serious violence against the person/damage to property; to influence a government for a political cause 5. The action of Computer hackers who attempt to sabotage the webpage containing an unpopular government policy by breaking into the government website - serious interference with an electronic system; to influence a government, for a political cause Firearms and Explosives Section 1 (1) (3) includes the use of firearms or explosives for political purposes but irrespective of any design to influence the government. This provision thus has a fundamental flaw in making the difference between political purpose and design to influence government. Powers Granted under Terrorism Act 2000 Almost all the countries in the world have adopted their own definitions of terrorism and several international treaties have also defined the term terrorism10. As per the provisions of Terrorism Act, 2000 the following powers have been specifically granted to the appropriate authorities including the Home Secretary. These include the power: to prescribe the terrorist organizations and classifying as offences the membership to deal with the terrorist property by prescribing offences of raising funds for terrorist organizations and the power of seizure and forfeiture of terrorist funds to cordon areas in order to facilitate the investigation to stop and search of premises, arrest without warrant On the powers granted under the Terrorism Act, special note is to be taken of section 44, which empowers police to stop and search for terrorism material in designated areas and subject to Home office confirmation. Perhaps here the powers have been granted excessively11 In this connection it is to be noted that since the powers conferred by the Act are far reaching, it is of crucial importance that the definition under section 1 of the Terrorism Act, 2000 should accurately reflect the true intention of the Parliament. If the definition is too wide to cover a range of activities than it is intended, then it may so happen that persons who fall within its unintended scope would be incurring serious criminal liability for acts which are subject to serious limitations to their usual rights. On the other hand if the definition is made too narrow it may lead to the ineffectiveness of the measures12. Possibilities of Changes in the Definition There are certain distinct possibilities that can be listed as probable changes to the definition of the term 'terrorism' under the Terrorism Act, 200013. These changes are suggested on the basis of a comparison with the definition of the term in other jurisdictions: 1. The word 'influence' can be made more powerful to do something more to the government 2. The consequences of the intention under subsection (2) may be mentioned. 3. The definition suffers a weakness that some of the consequences have been narrowly drafted - for instance, the definition leads to a thought that disruption to all the electronic systems are to be treated as 'terrorist' acts. 4. The words 'involves' and 'designed' may be substituted by the words 'causes' and 'intended' 5. The definition may exclude legitimate protests and industrial actions 6. The insertion of a clarification that the acts carried out during the course of armed conflict does not constitute terrorism. Conclusion The definition of the term 'terrorism' under the Terrorism Act, 2000 assumes a greater significance in view of the fact that it forms the base for the determination of the scope of a number of offences and executive powers granted by the Act. It is the opinion of a large section of the public including practitioners and legal experts that it is vitally important that a balance is struck between a definition, that is too narrow which renders the provisions ineffective and one which is too wide to intimidate those to whom it applies unintentionally. Since the concept of terrorism can be viewed partly as having a political value, there is bound to be an element of executive choice in the application. In that case it may not be possible to have an exhaustive statutory definition of the term. If it is to be attempted to make it as wide, it may amount to the redrafting of the whole of the anti-terrorism legislation of the United Kingdom. Bibliography An updated current text of the Terrorism Act 2000 as provided by the government is available at Blick A, Choudhury T and Weir S, a report by Democratic Audit, Human Rights Centre, University of Essex, for the Joseph Rowntree Reform Trust. CBA Response to Lord Carlile of Berriew on the Statutory Definition of 'Terrorism' James Hammerton 'The Terrorism Act, 2000 - Commentary' Magna Carta Plus p1 Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: Terrorism Bill and related matters, 28 November 2005, available at < www.parliament.uk> Operation of the Terrorism Act 2000, available at the Home Office website Report published December 2006; available at < www.aph.gov.au> Terrorism: United Kingdom Law & Practice; Definition of Terrorism in the UK Terrorism Act A Report by Lord Carlile of Berriew Q.C., Independent Reviewer of Terrorism Legislation, Presented to UK Parliament, by the Secretary of State for the Home Department, by Command of Her Majesty, 15 March 2007 UN Resolution 15666 [2004] and Council of Europe Convention on the Prevention of Terrorism [2005] Read More